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Iran/Arms Transaction: Legal Memoranda: Supplemental Legal Questions Submitted to State Department by Hamilton Subcommittee (House Foreign Affairs)
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118565704
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Iran/Arms Transaction: Legal Memoranda: Supplemental Legal Questions Submitted to State Department by Hamilton Subcommittee (House Foreign Affairs)
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Arthur Culvahouse's Office Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Culvahouse, Arthur B.: Files
Folder Title: Iran/Arms Transaction: Legal
Memoranda: Supplemental Legal Questions
Submitted to State Department by Hamilton
Subcommittee (House Foreign Affairs)
Box: CFOA 1131
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
United States Department of State
The Legal Adviser
Washington, D.C. 20520
December 3, 1986
MEMORANDUM
TO:
Mr. Cooper, Department of Justice
Mr. Dougherty, Central Intelligence Agency
Mr. Garrett, Department of Defense
Mr. Wallison, White House
FROM:
Abraham D. Sofaer
SUBJECT: Supplemental Legal Questions Submitted to
Department of State by Hamilton Subcommittee
on Europe and the Middle East
Attached are State's proposed answers to supplemental
legal questions submitted by Congressman Hamilton's
subcommittee, following the November 24 hearing at which
Deputy Secretary of State Whitehead testified. Please
comment/clear by COB tomorrow.
attachment
V. LEGAL ISSUES
As a general matter, we refer you to the Justice
Department for answers to questions relating to the legal basis
for the arms transfers to Iran. We understand that the Justice
Department may have relied in part on a 1981 memorandum of law
done by the Legal Adviser to the State Department concerning
general legal authority for the transfer of arms outside the
framework of the Arms Export Control Act. Apart from the
question answered below, the State Department is not in a
position to answer any of the other questions relating to
specific aspects of this operation. We recommend that the
Committee refer these questions to the agencies which had
direct involvement and responsibility for the operations in
question.
A3. President Carter issued Executive Order 12205 on November
14, 1979 which placed an embargo on Iran, but that was revoked
January 19, 1981.
-- Is there a legally binding arms embargo in effect
against Iran today?
-- Is there any legal basis for an arms embargo against
Iran today?
-- or is the arms embargo against Iran merely a policy
decision with no legal basis today?
A. In December 1979, in the exercise of its discretionary
authority under Section 38 of the Arms Export Control Act to
regulate and license arms exports, the State Department
announced that it had suspended all existing licenses and
approvals for the export or retransfer to Iran of Munitions
List articles and related technical data. This policy was
maintained after the signing of the Algiers Accords,
notwithstanding the revocation of other sanctions against Iran
contained in Executive Order 12205, and this policy remains in
effect today. In addition, Section 509 of the Omnibus
Diplomatic Security and Antiterrorism Act of 1986 has, since
its enactment on August 27, 1986, prohibited (in the absence of
a Presidential waiver and report to Congress) the export of
Munitions List items to any country which the Secretary of
State has determined, for purposes of section 6 of the Export
Administration Act, has repeatedly provided support for acts of
international terrorism. On January 23, 1984 the Secretary of
State determined that Iran is such a country, and that
determination remains in effect.
DANTE 8 FASCELL FLORIDA, CHAIRMAN
LEE H. HAMILTON, INDIANA
WILLIAM S BROOMFIELD. MICHIGAN
GUS YATRON. PENNSYLVANIA
BENJAMIN A. GILMAN, New YORK
STEPHEN J. SOLARZ New YORK
ROBERT J LAGOMARSINO. CALIFORNIA
DON BONKER, WASHINGTON
JIM LEACH IOWA
GERRY E. STUDDS. MASSACHUSETTS
TOBY ROTH. WISCONSIN
DAN MICA, FLORIDA
OLYMPIA J. SNOWE MAINE
MICHAEL D. BARNES MARYLAND
HENRY J. HYDE. ILLINOIS
HOWARD WOLPE MICHIGAN
GERALD B.H. SOLOMON. New YORK
Congress of the United States
GEO W. CROCKETT, JR., MICHIGAN
DOUG BEREUTER NEBRASKA
SAM GEJDENSON. CONNECTICUT
MARK D. SILJANDER, MICHIGAN
MERVYN M DYMALLY. CALIFORNIA
ED ZSCHAU CALIFORNIA
TOM LANTOS. CALIFORNIA
ROBERT K. DORNAN CALIFORNIA
Committee on Foreign Affairs
PETER H. KOSTMAYER. PENNSYLVANIA
CHRISTOPHER H. SMITH, NEW JERSEY
ROBERT G. TORRICELLI, NEW JERSEY
CONNIE MACK. FLORIDA
LAWRENCE J. SMITH FLORIDA
MICHAEL DEWINE. OHIO
HOWARD L BERMAN, CALIFORNIA
DAN BURTON INDIANA
House of Representatives
HARRY REID. NEVADA
JOHN McCAIN, ARIZONA
MEL LEVINE. CALIFORNIA
EDWARD F. FEIGHAN. ONIO
Washington, DC 20515
TED WEISS. NEW YORK
GARY L ACKERMAN, NEW YORK
BUDDY MACKAY. FLORIDA
MORRIS K. UDALL. ARIZONA
ROBERT GARCIA, NEW YORK
JOHN J. BRADY, JR.
November 25, 1986
CHIEF OF STAFF
The Honorable John C. Whitehead
Deputy Secretary
Department of State
Washington, D.C. 20520
Dear Mr. Secretary:
Attached please find supplemental questions submitted by the
Committee following the November 24th hearing on the President's
foreign policy initiatives toward Iran.
Because of the importance of this subject, it is the committee's
desire to have this information as soon as possible. Therefore it
would be appreciated if the Department would coordinate, where
necessary, with other Executive branch agencies and provide the
responses to the committee no later than Friday, December 5.
I appreciated your appearance before the committee yesterday.
With best regards,
Sincerely yours,
Lee H. Hamilton
Chairman
Subcommittee on Europe
and the Middle East
Page 16
V. LEGAL ISSUES
A. General
NEW
1. Under what authority did you transfer or sell military articles
to
Iran?
w/L>
- Under what authority did you approve third country transfer of
PM
defense articles and services to Iran?
and
others
- The Attorney General prepared a memo outlining the legal basis for
as approp.
the President's authorization of arms transfers to Iran. Could you
provide the Committee with a copy of that memo?
- Could you also provide the Committee with any other legal memos from
White House Counsel, Department of State or other Executive branch
agencies stating the Administration's legal basis for proceeding
with arms transfers to Iran?
2. Military equipment supplied by the United States under the Foreign
Military Sales and other security assistance programs is subject to various
conditions on use, retransfer, etc.
- In the case of military equipment made available to Iran by the CIA,
were any conditions imposed on Iran with respect to that equipment?
3. President Carter issued Executive Order 12205 on November 14, 1979
which placed an embargo on Iran, but that was revoked January 19, 1981.
L
- Is there a legally binding arms embargo in effect against Iran
today?
- Is there any legal basis for an arms embargo against Iran today?
- Or is the arms embargo against Iran merely a policy decision with no
legal basis today?
Page 17
B. Provisions of the Arms Export Control Act
1. Under Section 3 (a) of the AECA, no defense article shall be sold by the
L
U.S. to a foreign country unless "the receiving country agrees not to transfer
title to, or possession of, the defense article unless the President's consent
has first been obtained." The President must promptly submit a report to
Congress on the implementation of each agreement entered into pursuant to this
provision.
- Why has no report been submitted to Congress concerning such
agreement by Iran?
- Why has no report been submitted to Congress concerning consent by
the President to Israel or any other government to permit a third
country transfer of arms to Iran?
2. Section 3(f) of the AECA states that "Unless the President finds that
national security requires otherwise," arms sales are prohibited to "any
government which aids or abets, by granting sanctuary from prosecution, any
individual or group which has committed an act of international terrorism." The
President may waive this requirement, but he must submit a report to Congress.
Since January, 1984, the Secretary of State has designated Iran as a state
which has supported terrorism.
- Why has no report on a waiver been submitted to the Congress?
- Why is this provision not applicable to any arms sales to Iran
regardless of the authority under which they may be provided?
3. Section 4 of the AECA states that defense articles can be sold by the
United States only to "friendly countries solely for internal security" and
L
only for "legitimate self-defense."
- Has Iran met these two criteria?
- Would the use of U.S.-supplied arms by Iran in Iraqi-held territory
be considered legitimate self-defense?
- Can a state officially designated as one which supports
international terrorism also be a "friendly country" ?
- What evidence do you have that what the President has said are
"defensive weapons and spare parts for defensive systems" are being
used by Iran for "legitimate self-defense"?
Page 18
3. (continued)
The Administration is on record that Iran is the intransigent party in the
Iran-Iraq war and that Iran, not Iraq, is the party which has rejected
international mediation or negotiation to end the war.
- How can any provision of arms in this case constitute "legitimate
self-defense"?
C. Third Country Transfers
1. NO third country transfers of U.S.-supplied defense articles and
services can go forward without the consent of the President or the Secretary
L
of State. Congress requires prompt reports of notification of such consent.
- Was any such authority granted by the U.S. to Israel or any other
country?
- Who in the Government gave this consent?
- What was the value (in terms of original acquisition cost) of the
equipments whose transfer was approved?
- Was the Congress notified that such approval was being given?
- If not, why not?
2. What military equipment has Israel made available to Iran (directly or
through intermediaries) with the knowledge of the United States Government
during the past two years?
NCA/IAI
- When was this equipment transferred to Iran?
- What was the value of the equipment involved?
- Who in the United States Government knew of the transfer?
- How did the United States Government come to know that the transfer
was going to occur?
1898
DEC -3 b
United States Department of State
The Legal Adviser
Washington, D.C. 20520
December 3, 1986
MEMORANDUM
TO:
Mr. Cooper, Department of Justice
Mr. Dougherty, Central Intelligence Agency
Mr. Garrett, Department of Defense
Mr. Wallison, White House
FROM:
Abraham D. Sofaer
SUBJECT: Supplemental Legal Questions Submitted to
Department of State by Hamilton Subcommittee
on Europe and the Middle East
Attached are State's proposed answers to supplemental
legal questions submitted by Congressman Hamilton's
subcommittee, following the November 24 hearing at which
Deputy Secretary of State Whitehead testified. Please
comment/clear by COB tomorrow.
NSF
attachment
United States Department of State
Washington, D.C. 20520
SEC
Dear Mr. Chairman:
I am writing in response to your letter of November 25,
1986, in which you ask a number of questions relating to the
sale of U.S. military equipment to Iran and the provision of
funds to the Nicaraguan democratic resistance.
We have reviewed the list of questions carefully. I have
enclosed responses to those queries which relate to U.S.
policies and routine Department procedures on which the
Department has information.
In many instances, however, the Department is unable to
provide answers because we do not possess authoritative
information on the arms or financial transactions about which
you are asking. Other executive branch agencies may be in
possession of information responsive to these questions, and we
understand that these agencies have been contacted directly by
your Subcommittee.
As you are aware, the Secretary of State has provided
testimony before the House Foreign Affairs Committee (and is
prepared to provide additional testimony in appropriate fora)
concerning the Department of State's knowledge of the entire
matter. We remain convinced that this comprehensive testimony
will provide a full account of the information available to the
State Department.
I hope that this information will be of assistance.
Sincerely,
J. Edward Fox
Assistant Secretary
Legislative and Intergovernmental Affairs
Enclosure:
As stated
The Honorable
Lee H. Hamilton, Chairman
Subcommittee on Europe and the Middle East,
House of Representatives.
(LEGAL SECTION ONLY)
V. LEGAL ISSUES
As a general matter, we refer you to the Justice Department
for questions relating to the legal basis for the arms transfer
to Iran. We understand that the Justice Department may have
relied in part on a 1981 memorandum of law done by the Legal
Adviser to the State Department concerning general legal
authority for the transfer of arms outside the framework of
tahe Arms Export Control Act. Apart from the question answered
on the next page (A3), the State Department is not in a
position to answer any of the other questions relating to
specific aspects of this operation. We recommend that the
Committee refer these questions to the agencies which had
direct involvement and responsibility for the operations in
question.
3. President Carter issued Executive Order 12205 on November
14, 1979 which placed an embargo on Iran, but that was revoked
January 19, 1981.
--
Is there a legally binding arms embargo in effect
against Iran today?
--
Is there any legal basis for an arms embargo against
Iran today?
--
Or is the arms embargo against Iran merely a policy
decision with no legal basis today?
A. In December 1979, in the exercise of its discretionary
authority under Section 38 of the Arms Export Control Act to
regulate and license arms exports (with the exception of
exports by a U.S. Government agency for its official use or to
carry out a foreign assistance or sales program authorized by
law), the State Department announced that it had suspended all
existing licenses and approvals for the export or retransfer to
Iran of Munitions List articles and related technical data.
This policy is consistent with the Algiers Accords, in our
view, and remains in effect today. In addition, Section 509 of
the Omnibus Diplomatic Security and Antiterrorism Act of 1986,
which was enacted on August 27, 1986, amended the Arms Export
Control Act to prohibit (in the absence of a Presidential
waiver and report to Congress) the export of Munitions List
items to any country which the Secretary of State has
determined, for purposes of section 6 of the Export
Administration Act, has repeatedly provided support for acts of
international terrorism. On January 23, 1984 the Secretary of
State determined that Iran is such a country, and that
determination remains in effect. (The foregoing is, of course,
without prejudice to the authority of the Executive Branch to
carry out transfers of defense articles and services under
other legal authorities, such as pursuant to special
intelligence findings.)
2. What military equipment has Israel made available to Iran
(directly or through intermediaries) with the knowledge of the
United States Government during the past two years?
When was this equipment transferred to Iran?
What was the value of the equipment involved?
How did the United States Government come to know that
the tansfer was going to occur?
A. I have no direct information on this subject. The agencies
?
involved in transfers to Iran have provided full accounting to
Congress through appropriate channels.
3. What was the status of equipment Israel supplied to Iran?
Was any of this equipment Israel supplied to Iran
originally provided to Israel by the United States
Government under the Foreign Military Sales or other
security assistance program?
Was any of this equipment produced under a manufacturing
licensing agreement or a technical assistance agreement?
Was any of this equipment "U.S. origin" equipment that
was obtained by Israel by other means, e.g. captured during
military operations or obtained through private arms
dealers?
A. I don't have the answers to these questions at this time.
4. Has any other foreign country, with the knowledge of the
United States Government, made available to Iran (directly or
through intermediaries) during the last two years any US-origin
military equipment that was obtained under the Foreign Military
Sales or other security assistance program, under a
manufacturing licensing or technical assistance agreement, or
under a Munitions control license?
A. Not to the knowledge of the State Department.
5. Does the United States Government have any information that
any foreign country has transferred U.S.-origin military
equipment to Iran without obtaining the required consent of the
United States.
--If it does, why has this information not been reported to
the Congress?
A. No.
6. To the extent that a foreign government transferred
U.S. -origin military equipment to Iran through intermediaries,
did the United States Government know this was being done?
--Did it give its approval to such indirect transfers?
Was Congress informed of the transfer to the intermediary?
A. We do not have information on this subject.
7. With respect to U.S.-origin military equipment supplied to
Iran by other countries:
Would the United States have been willing to transfer
this military equipment to Iran itself?
Were any conditions imposed, especially conditions
relating to purposes for which the equipment could be used
or relating to retransfers of the equipment?
Was any of the equipment "demilitarized" prior to its
transfer?
Has Iran provided any commitments in writing to the
United States Government that it will not transfer the
military equipment, if not demilitarized, to any foreign
country or person without first obtaining the consent of
the President?
A. I have no information reliably to comment on these
questions.
Q. Today's Washington Post says that the State Department
told the House Foreign Affairs Committee last week that a
special presidential intelligence finding could override the
prohibition against selling U.S. arms to Iran established by
the 1986 antiterrorism act. Is that correct?
A. The Post article apparently refers to one of a series
of answers provided by the State Department to questions
submitted by the Chairman of the HFAC Subcommittee on Europe
and the Middle East, Lee Hamilton, to Deputy Secretary Whitehead
in connection with his appearance before that Subcommittee on
November 24.
This answer responded to a question from the Committee as
to whether a legally binding arms embargo was presently in
effect against Iran, and the Department's answer referred,
among other things, to a provision of the Omnibus
Diplomatic Security and Antiterrorism
Act of 1986, which amended the Arms Export Control Act to
prohibit (in the absence of a Presidential waiver and report to
Congress) the export of Munitions List items to any country
which the Secretary of State has determined to have repeatedly
provided support for acts of international terrorism. The
Department's answer then notes, in a concluding parenthetical,
that "the foregoing is, of course, without prejudice to the
authority of the Executive Branch to carry out transfers of
defense articles and services under other legal authorities,
such as pursuant to special intelligence findings."
-2-
This was an appropriate caveat, since it is generally
recognized, by both the Executive Branch and the Congress,
that the Executive Branch is authorized to transfer arms
to foreign governments pursuant to intelligence operations
consistent with the National Security Act, outside the terms
and limitations of the Arms Export Control Act. It was a
general answer to a general question about existing law,
not an analysis of any particular arms transfers.
Q. Does that mean that the Administration believes it can
legally transfer arms to a country on the terrorism list,
without the Presidential waiver and notice to Congress required
by the Omnibus Antiterrorism Act, so long as it is done under
cover of intelligence operations?
A. We believe that arms transfers pursuant to intelligence
operations are in general governed by the National Security Act
and not the Arms Export Control Act, which was intended and
designed to deal with overt arms transfers through normal
government channels. We have not addressed whether the
provision of the Omnibus Antiterrorism Act,
which amended the Arms Export Control Act on August 27, 1986,
was intended to alter this general rule.